Citation NR: 9633053
Decision Date: 11/21/96 Archive Date: 12/02/96
DOCKET NO. 89-08 198 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Robert B. Swanson, Associate Counsel
INTRODUCTION
The veteran had active service from December 1971 to March
1973.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 1992 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Roanoke, Virginia.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has a post-traumatic stress
disorder, which he acquired due to stressors experienced
during service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the veteran has not met his
initial burden of submitting evidence to justify a belief by
a fair and impartial individual that his claim for service
connection for post-traumatic stress disorder is well-
grounded.
FINDINGS OF FACT
1. The RO has secured all of the relevant evidence necessary
for an equitable disposition of the appellant's appeal.
2. The claim for service connection for post-traumatic
stress disorder is not plausible.
CONCLUSION OF LAW
The claim of entitlement to service connection for post-
traumatic stress disorder is not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991 & Supp. 1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board must determine whether the
veteran has submitted evidence of a well-grounded claim. If
he has not, his appeal must fail, and VA is not obligated to
assist him in the development of the claim. 38 U.S.C.A.
§ 5107(a). For the reasons set forth below, the Board finds
that the veteran has not met his burden of submitting
evidence to support a belief that his claim of entitlement to
service connection for post-traumatic stress disorder is well
grounded. Id.; see Grottveit v. Brown, 5 Vet.App. 91 (1993);
Tirpak v. Derwinski, 2 Vet.App. 609 (1992); Murphy v.
Derwinski, 1 Vet.App. 78 (1990)..
The veteran contends that he has post-traumatic stress
disorder, which he acquired due to stressors experienced
during service. As to the stressors, he averred that several
men had sexually assaulted him during service, once in 1972
and once in 1973.
The veteran's service medical records, including the January
1973 report of his examination for separation from service,
are devoid of any complaints, symptoms, findings, or
diagnosis of an assault, sexual or otherwise. Subsequent to
his separation from service, he received periodic VA and
private outpatient treatment as well as periodic VA inpatient
treatment for his psychiatric disability, which was variously
diagnosed, including post-traumatic stress disorder. In
February 1991, a private psychiatrist, Philip R. Hirsh,
reported that he had been treating the veteran since October
1990, and that the veteran had post-traumatic stress disorder
as well as a personality disorder and a substance abuse
disorder. In February 1991, a private psychologist, Julie
Jennings, Ph.D., reported that she had been counseling the
veteran for more than three years for post-traumatic stress
disorder. In November 1991, Dr. Hirsh reported that he began
treating the veteran in the fall of 1990, that the veteran
reported that he had been sexually assaulted in 1972, and
that the diagnoses included post-traumatic stress disorder.
In December 1991, Dr. Jennings reported that she had been
counseling the veteran for the past seven years for post-
traumatic stress disorder due to an in-service sexual
assault. In June 1992, Dr. Hirsh reported that the veteran
had post-traumatic stress disorder due to an in-service
sexual assault, and that it was not surprising that he did
not report it to medical authorities because of shame.
In April 1996, a special VA psychiatric examination was
conducted by two Board Certified psychiatrists. During the
examination, the veteran reported that he had been sexually
assaulted during service in the summer of 1972 by two white
servicemen. The examiner noted that the veteran reported
during November 1985 VA outpatient treatment that he had been
sexually assaulted during service by three black servicemen,
although this inconsistency could have been due to his
inability to remember one or more of the details of the
stressful event. The diagnoses were chronic, moderate post-
traumatic stress disorder, dysthymia, and pedophilia, in
remission.
I. Service Connection for Post-Traumatic Stress Disorder
Service connection is granted for disabilities that were
incurred as a result of service. 38 C.F.R. § 3.303(a)
(1995). With respect to post-traumatic stress disorder,
service connection requires evidence showing that the
reported in-service stressors occurred, medical evidence
showing a current diagnosis of the disability, and medical
evidence showing a link between the reported in-service
stressors and the symptomatology. 38 C.F.R. § 3.304(f)
(1995). The nature of the evidence required to establish
whether the reported in-service stressors occurred is
dependent upon whether the reported stressors were related to
combat. West v. Brown, 7 Vet.App. 70, 76 (1994). If a
reported stressor arose from a combat experience and there is
verification that a veteran engaged in combat, the veteran's
lay testimony about the stressor is conclusive proof as to
the stressor's occurrence, provided the testimony is
credible, i.e., consistent with circumstances, conditions, or
hardships of such service. Id; 38 C.F.R. § 3.304(d), (f)
(1995). If a reported stressor arose from a noncombat
experience, service department records are required to
corroborate the occurrence of the reported stressor. Id. If
a service stressor is verified, there must be competent
medical evidence showing that the stressor was sufficient to
support a post-traumatic stress disorder diagnosis. West at
79.
As indicated previously, when claiming entitlement to VA
benefits, a claimant first must submit evidence to justify a
belief that such a claim is well grounded. Grottveit, at 92;
Tirpak, at 611. It is neither asserted or shown that the
veteran experienced stressors related to combat. Therefore,
the stressors must be verified by service department records
to corroborate there occurrence. West at 76. The veteran
reported several noncombat related stressors. He indicated
that several men sexually assaulted him on two separate
occasions, once in 1972 and once in 1973. In March 1996, the
National Personnel Records Center reported that it was unable
to locate the veteran’s service personnel records. There is,
however, no indication that these records would contain any
relevant information as the veteran never indicated that he
reported either assault, and any action, investigatory or
otherwise, is not indicated to have been initiated. The
record does, however, contain his service medical records,
which are devoid of any reports of, or treatment for, an
assault, sexual or otherwise. There is, therefore, no
verification of the veteran's noncombat stressors by service
department records. Therefore, the evidence does not show
that the veteran experienced a stressor during service which
would be sufficient to warrant a current diagnosis of post-
traumatic stress disorder.
Here, as in West, a VA psychiatrist diagnosed post-traumatic
stress disorder based solely upon a veteran's report of his
stressors, ones which the VA ultimately rejected. West at
77-78. In West, the United States Court of Veterans Appeals
(Court) found that the post-traumatic stress disorder
diagnosis was questionable because the examiner relied upon a
questionable history. Id. at 78. The Court held that the
VA's duty to assist the veteran required that the VA conduct
another psychiatric examination, one based upon an accurate
and complete description of events of the veteran's service.
Id. at 78. Here, unlike West, there are no verified
noncombat stressors. Further examination of the veteran
would, therefore, be futile as there are no verified service
stressors to support a diagnosis of post-traumatic stress
disorder. Thus, an examiner would have no stressors based
upon a complete and accurate account of the veteran's service
to evaluate as to whether they were sufficient to support a
post-traumatic stress disorder diagnosis.
The evidence does not show that the veteran experienced a
stressor during service which could result in PTSD. West at
76. Accordingly, without the requisite evidence establishing
the existence of a stressor during service, and thus
establishing that the veteran's claim is plausible, he has
not met his burden of submitting evidence that his claim for
service connection for post-traumatic stress disorder is well
grounded. Grottveit, at 92; Tirpak. at 611.
Although the Board has considered and disposed of the
veteran's claim on a ground different from that of the RO,
that is, whether the veteran's claim is well grounded rather
than whether he is entitled to prevail on the merits, the
veteran has not been prejudiced by the Board's decision. In
assuming that the claim was well grounded, the RO accorded
the veteran greater consideration than his claim warranted
under the circumstances. Bernard v. Brown, 4 Vet.App. 384,
392-94 (1993). To remand this case to the RO for
consideration of the issue of whether the veteran's claim is
well grounded would be pointless, and in light of the law
cited above, would not result in a determination favorable to
the veteran. VA O.G.C. Prec. Op. 16-92, 57 Fed. Reg. 49, 747
(1992). To submit a well-grounded claim the veteran would
need to offer evidence, such as service department records
establishing the existence of an in service non-combat
stressor, and competent evidence, such as a medical opinion,
that he has post traumatic stress disorder that is related
thereto. Robinette v. Brown, 8 Vet.App. 69 (1995).
ORDER
Evidence of a well-grounded claim not having been submitted,
service connection for post-traumatic stress disorder is
denied.
MILO H. HAWLEY
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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